STATE OF NEW JERSEY VS. DANIEL CARABALLO (81-11-1779, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0829-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANIEL CARABALLO,
Defendant-Appellant.
_________________________
Submitted December 11, 2018 – Decided January 9, 2019
Before Judges Yannotti and Rothstadt.
On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 81-11-1779.
Daniel Caraballo, appellant pro se.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Senior
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from an order dated July 11, 2017, which denied his
motion to correct an allegedly illegal sentence. We affirm.
In 1981, a Passaic County grand jury charged defendant with the knowing
murder of Concepcion Navas, N.J.S.A. 2C:11-3 (count one); the attempted
murder of Romanita Rodriguez and Maria Vega, N.J.S.A. 2C:5-1, N.J.S.A.
2C:11-3 (count two); aggravated assault against Rodriguez and Vega, N.J.S.A.
2C:12-1(b)(1) (count three); making threats to kill Blanca Ayala, N.J.S.A.
2C:12-3( count four); possession of a firearm for an unlawful purpose, N.J.S.A.
2C:39-4(d) (count five); and unlawful possession of a weapon, N.J.S.A. 2C:39-
5(c)(2) (count six).
In March 1985, defendant was tried before a jury and found guilty on
counts one, three, five, and six, and not guilty on counts two and four. The judge
merged count five into count six, and imposed the following sentences: on count
one, life imprisonment with a twenty-five year parole bar; on count three, ten
years of imprisonment with a five-year parole bar, consecutive to the sentence
on count one; and on count six, ten years imprisonment, with five years of parole
ineligibility, concurrent to the sentences on counts one and three. The judge
filed a judgment of conviction dated April 18, 1985.
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Defendant appealed, and on December 31, 1987, we affirmed defendant's
conviction and sentence. The Supreme Court denied defendant's petition for
certification. State v. Caraballo, 110 N.J. 292 (1988). Defendant then filed a
petition for a writ of habeas corpus in the federal district court and in September
1989, the court dismissed the petition.
Defendant filed a petition for post-conviction relief (PCR) in the Law
Division, and on November 26, 1990, the court dismissed the petition as time-
barred under Rule 3:22-12. Defendant appealed and we affirmed. State v.
Caraballo, No. A-2203-90 (App. Div. Mar. 11, 1992) (slip op. at 3). In 1993,
defendant filed a second petition for a writ of habeas corpus in the federal district
court, which the court denied.
On May 30, 1995, defendant filed a second PCR petition in the Law
Division, which the court dismissed on December 1, 1995. Defendant later filed
a third PCR petition and the Law Division denied the petition on October 14,
1998. We affirmed. State v. Caraballo, No. A-4083-98 (App. Div. Oct. 20,
2000). The Supreme Court denied certification. State v. Caraballo, 167 N.J.
631 (2001).
On November 6, 2000, defendant filed a fourth PCR petition, in which he
claimed that his sentence was illegal because the sentencing judge had allegedly
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erred in his consideration of certain aggravating factors. The Law Division
denied relief, finding that defendant's claim was procedurally barred. We
affirmed the denial of PCR. State v. Caraballo, No. A-2655-03 (App. Div. June
15, 2005) (slip op. at 4). We found that the PCR court correctly determined that
defendant's claim was time-barred under Rule 3:22-12, and barred by Rule 3:22-
5 because the claim had been previously adjudicated on direct appeal. Id. at 4-
5.
We also rejected defendant's contention that his sentence violated
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542
U.S. 296 (2004). Caraballo, No. A-2655-03, slip op. at 5-7. We noted that
defendant argued that the sentencing judge violated his right under the Sixth
Amendment to the United States Constitution when the judge imposed the life
sentence. Id. at 5-6.
We found that defendant's claim failed because there was no "presumptive
sentence" for murder and the imposition of the statutory maximum term "passed
constitutional muster under both Apprendi and Blakely." Id. at 7. We therefore
found no need to address defendant's contention that retroactive application of
Apprendi and Blakely made his life sentence illegal. Id. at 7.
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Thereafter, defendant filed a motion in the trial court to correct what he
claimed was an illegal sentence. The court found that the sentence was
authorized by the applicable statute, and the sentencing judge's alleged double-
counting of his prior offenses for sentencing purposes was not a basis for relief
under Rule 3:22-12. Defendant appealed from the trial court's order denying his
motion and we affirmed, noting that none of defendant's arguments related to
the legality of his sentence. State v. Caraballo, No. A-0529-10 (App. Div.
March 7, 2012) (slip op. at 3).
On March 7, 2017, defendant filed another motion to correct an allegedly
illegal sentence. The trial court entered an order dated July 11, 2017, denying
the motion. In an accompanying letter opinion, the court noted that defendant
claimed his sentence was illegal because the sentencing judge had imposed the
life sentence without additional fact-finding by a jury.
In support of that claim, defendant cited Apprendi, and the later decisions
in Blakely and United States v. Booker, 543 U.S. 220 (2005), which applied
Apprendi. The trial court found that defendant's reliance upon these decisions
was misplaced because Apprendi was decided fifteen years after he was
sentenced, and that the principles enunciated in Apprendi and the subsequent
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cases did not apply retroactively to invalidate defendant's sentence. This appeal
followed.
On appeal, defendant argues:
POINT 1
[A.] DEFENDANT SHOULD BE RESENTENCED
OR A NEW TRIAL ORDERED IN LIGHT OF THE
BLAKELY V. WASHINGTON DECISION AS TO
PREVENT A MANIFEST INJUSTICE CREATED BY
SENTENCING THE DEFENDANT TO TWENTY-
FIVE (25) YEARS TO LIFE AS A PERSISTENT
VIOLENT FELON.
B. THE RECENT . . . DECISION [IN CUNNINGHAM
v. CALIFORNIA, 549 U.S. 270 (2007)] MAKES IT
UNCONSTITUTIONAL TO SENTENCE ME TO A
SENTENCE ABOVE THE EXTENDED TERM
USING "PROTECTION OF THE PUBLIC" AS AN
ENHANCEMENT.
POINT 2
DEFENDANT'S SENTENCE IS EXCESSIVE[.]
A. The Imposition of a Presumptive Base Term With
The Maximum Term of Parole Ineligibility Was An
Abuse of Discretion[.]
B. The Trial Court Abused Its Discretion In Imposing
A Consecutive Sentence For The Aggravated Assault
finding.
We note initially that although it was not the basis for the trial court's
order, defendant's claim based on Apprendi and Blakely is barred by Rule 3:22-
5. The rule states that:
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[a] prior adjudication upon the merits of any ground for
relief is conclusive whether made in the proceedings
resulting in the conviction or in any post-conviction
proceeding brought pursuant to this rule or prior to the
adoption thereof, or in any appeal taken from such
proceedings.
[Ibid.]
As we noted previously, in the appeal from the denial of his fourth PCR
petition, defendant argued that his life sentence violated Apprendi and Blakely,
and those decisions should be applied retroactively to invalidate his life
sentence. We held that Apprendi and Blakely did not apply to defendant's
sentence. Caraballo, No. A-2655-03, at 6-7. Therefore, Rule 3:22-5 precludes
defendant from re-litigating that issue in this appeal.
Moreover, even if the procedural bar did not apply, defendant's argument
fails. In Cunningham v. United States, the Court noted the Sixth Amendment
"proscribes a sentencing scheme that allows a judge to impose a sentence above
the statutory maximum based on a fact, other than a prior conviction, not found
by a jury or admitted by the defendant." 549 U.S. 270, 274-75 (2007) (citing
Apprendi, 530 U.S. at 490, Blakely, 542 U.S. at 304-05, and Booker, 543 U.S.
at 244). The Court in Cunningham observed that the "statutory maximum"
means "the maximum [a judge] may impose without any additional findings" (as
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opposed to "the maximum sentence a judge may impose after finding additional
facts"). Ibid. (emphasis in original) (citing Blakely, 542 U.S. at 303-04).
As we explained in our opinion in the appeal from the denial of
defendant's fourth PCR petition, there was no presumptive sentence for murder
at the time defendant committed that offense. Caraballo, No. A-2655-03, slip
op. at 6. Moreover, the criminal code then in effect allowed the court to impose
a life sentence for murder under N.J.S.A. 2C:43-7(a)(1) without separate proof
of the enhancement criteria in N.J.S.A. 2C:44-3. Id. at 6 (citing State v.
Maguire, 84 N.J. 508, 527 (1980)). We therefore held that defendant's life
sentence passed constitutional muster under Apprendi and Blakely. Id. at 6-7.
Furthermore, Apprendi and Blakely established a new rule of law, and in
State v. Natale, 184 N.J. 458, 494 (2005), the Court held that the rule would only
be applied to cases "in the pipeline," that is, cases that were on direct appeal as
of the date Natale was decided, August 2, 2005. Defendant's direct appeal was
decided by this court on December 31, 1987, and the Supreme Court denied
certification on March 8, 1988. Thus, defendant's appeal was not "in the
pipeline" when Natale was decided. Thus, defendant's reliance on Apprendi and
Blakely is misplaced.
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Defendant also argues that his sentence violates the provisions prohibiting
ex post facto laws under the New Jersey and United States Constitutions. He
quotes Bouie v. City of Columbia, 378 U.S. 347, 354 (1967), and Rogers v.
Tennessee, 532 U.S. 451, 456-57 (2001), to support his argument that judicial
enlargement of a maximum statutory sentence can violate the ex post facto
clauses when such judicial action is "unexpected and indefensible" under the
law in effect before the conduct at issue.
We note that in Bouie, the Court stated that "[i]f a judicial construction of
a criminal statute is 'unexpected and indefensible by reference to the law which
had been expressed prior to the conduct in issue,' [the construction] must not be
given retroactive effect." This principle is, however, "restricted to its traditional
due process roots" of fair warning, and it is not based on the ex post facto clause.
Rogers, 532 U.S. at 459-60.
Here, defendant's life sentence was neither "unexpected" nor
"indefensible." It was expressly permitted by the statute in effect before
defendant committed the offense. Thus, defendant's claim that his life sentence
violates ex post facto principles is meritless.
Defendant further argues that his sentence is illegal because the
sentencing judge relied in part on his two prior convictions in New York when
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the judge sentenced him to life imprisonment pursuant to N.J.S.A. 2C:43-
7(a)(1). He contends the sentencing judge erred by relying upon the New York
convictions because neither offense meets the definition of "prior conviction in
another jurisdiction" under N.J.S.A. 2C:44-4.
The argument is barred under Rule 3:22-5, because it was raised and
adjudicated in prior proceedings. In his appeal from the denial of his fourth
PCR petition, defendant argued that the sentencing judge's consideration of his
New York convictions rendered his sentence illegal. Caraballo, No. A-2655-03,
slip op. at 4. We rejected that argument. Id. at 5. We also noted that in
defendant's direct appeal, we had addressed the trial court's consideration of the
aggravating factors and found that the sentence was proper. Ibid.
Even if this claim was not barred by Rule 3:22-5, defendant's argument
lacks merit. As noted, imposition of a life sentence for murder under N.J.S.A.
2C:43-7(a)(1) does not require separate proof of the enhancement criteria in
N.J.S.A. 2C:44-3. Maguire, 84 N.J. at 525-26. In sentencing defendant, the
judge found several aggravating factors, including "[t]he extent of the
defendant's prior criminal record and the seriousness of the offenses of which
he has been convicted" under N.J.S.A. 2C:44-1(a)(6). In making that finding,
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the judge properly considered defendant's entire criminal record, including the
New York convictions for attempted robbery and grand larceny.
In addition, defendant contends that his sentence is excessive. Defendant
argues that the sentencing judge erred by purportedly deviating from the
presumptive base term and imposing a life sentence for murder. He also
contends that the judge abused his discretion by imposing a consecutive
sentence for aggravated assault.
It is well established, however, that a claim that a sentence is excessive
rather than illegal is not an appropriate ground for PCR. State v. Flores, 228
N.J. Super. 586, 592 (App. Div. 1988) (citing State v. Clark, 65 N.J. 426, 437
(1974)). Furthermore, a claim challenging a consecutive sentence that does not
relate to the legality of the sentence is not cognizable under PCR. State v.
Acevedo, 205 N.J. 40, 47 (2011).
As noted, defendant argues that the sentencing judge erred by imposing
the life sentence for murder under N.J.S.A. 2C:43-7(a)(1) and by imposing a
consecutive sentence for aggravated assault. The claims do not, however, relate
to sentence illegality. Therefore, defendant's sentencing arguments are not
cognizable on PCR. Furthermore, even if the sentencing claims were
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cognizable, defendant's arguments regarding the sentences lack sufficient merit
to warrant discussion. R. 2:11-3(e)(2).
Affirmed.
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